Barbero v CSX Transp.

[*1] Barbero v CSX Transp. 2023 NY Slip Op 23054 Decided on February 6, 2023 Supreme Court, Albany County Hartman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on February 6, 2023
Supreme Court, Albany County

Kenneth Barbero, Plaintiff,

against

CSX Transportation, Defendant.



Index No.: 905691-21



Hach & Rose, LLP
Mark G. Sokoloff, Esq.
Attorneys for Plaintiff
112 Madison Avenue, 10th Floor
New York, New York 10016

Burns White LLC
David Chludzinski, Esq.
Attorneys for Defendant
48 26th Street, Burns White Center
Pittsburgh, Pennsylvania 15222 Denise A. Hartman, J.

Plaintiff, a machinist employed by defendant CSX Transportation, a railroad company, commenced this action pursuant to the Federal Employers' Liability Act (45 USC § 51 et seq. [hereinafter FELA]) to recover for injuries alleged to have been caused by an unsafe work environment. He moves to preclude the testimony of defendant's expert Greg G. Weames, a certified professional ergonomist (motion No. 3). Defendant opposes and moves separately to preclude the report and testimony of plaintiff's expert William Marletta, Ph.D., a certified safety consultant (motion No. 4). Plaintiff opposes. For the reasons that follow, plaintiff's motion (No. [*2]3) is granted in part and denied in part, and defendant's motion (No. 4) is granted in part and denied in part.

Background

Plaintiff claims that he was injured while working at defendant's Selkirk Diesel Shop in Drop Pit 2, a large rectangular locomotive maintenance area sunk below the level of the surrounding shop platform. For the most part, the perimeter of Drop Pit 2 is a yellow-painted 14¾-inch-high curb (hereinafter referred to as the ledge).[FN1] The ledge is unguarded by a handrail or any other barrier. Defendant's employees could step down into Drop Pit 2 directly from the top of the ledge and could also step up from the pit floor directly to the top of the ledge, or they could use the two stairways at the east and west ends of the pit.

On July 20, 2018, while repairing Engine Unit 8246 in Drop Pit 2, plaintiff stepped out of the pit directly onto the ledge to retrieve a tool. Tool in hand, he intended to return to the pit the same way. Specifically, plaintiff alleges that, using his right foot, he stepped off the ledge onto the floor of Drop Pit 2. In plaintiff's telling, his right foot slipped on grease or moisture on the floor of the pit, that foot turned, and he fell and heard a pop from his right ankle. Plaintiff immediately informed his foreman that he may have sprained his ankle, but avers that the foreman advised him to return to work and discouraged him from formally reporting his injury. As a result, plaintiff continued to work for several days on his injured ankle. After eventually seeking treatment and being diagnosed with a repetitive stress impact fracture, plaintiff underwent fusion surgery on his right ankle. This FELA action ensued in July 2021.

FELA provides that a railroad engaged in interstate commerce "shall be liable in damages to any person suffering injury while he [or she] is employed by such carrier in such commerce . . . for such injury . . . resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment" (45 USC § 51). "In FELA actions, the plaintiff must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation" (Tufariello v Long Is. R.R. Co., 458 F3d 80, 87 [2d Cir 2006] [citations omitted]; accord Ojeda v Metropolitan Transp. Auth., 41 F4th 56, 63 [2d Cir 2022]). "A railroad may be liable under FELA for failure to provide a safe workplace when it knows or should know of a potential hazard in the workplace, yet fails to exercise reasonable care to inform and protect its employees" (Syverson v Consolidated Rail Corp., 19 F3d 824, 826 [2d Cir 1994] [internal quotation marks and citation omitted]; see Williams v Long Is. R.R. Co., 196 F3d 402, 406 [2d Cir 1999]). Reasonable care is an issue reserved for the factfinder to be "determined in light of whether or not a particular danger was foreseeable" (Syverson v Consolidated Rail Corp., 19 F3d at 826, citing Gallick v Baltimore & Ohio R. Co., 372 US 108, 117 [1963]; see Gallose v Long Is. R.R. Co., 878 F2d 80, 84 [2d Cir 1989]).

Defendant joined issue in August 2021 and proceeded with discovery. The parties commissioned experts and exchanged expert disclosures (see CPLR 3101 [d]), which are the subject of their motions now before the Court. Plaintiff seeks to preclude defendant's expert [*3]Weames from testifying on the ground that it is cumulative of testimony proffered by defendant's two other experts. Alternatively, plaintiff requests a Frye hearing to determine the admissibility and scope of Weames' testimony. And defendant, in its motion, contends that plaintiff's expert Marletta's testimony must be precluded because the regulations, codes, and standards upon which he relies are displaced or preempted by regulations and policies promulgated by the Federal Railroad Administration (FRA). Barring that, defendant maintains that Marletta's conclusions are unreliable, speculative, or inappropriate subjects of expert testimony.

Analysis

The admissibility of expert evidence is generally a matter left to the sound discretion of the trial court (see Dufel v Green, 84 NY2d 795, 797-798 [1995])). "Generally, an expert should be permitted to offer an opinion on an issue which involves professional or scientific knowledge or skill not within the range of ordinary training or intelligence" (Dufel v Green, 84 NY2d 795, 797-798 [1995] [internal quotation marks and citations omitted]; see People v Rivers, 18 NY3d 222, 228 [2011]; De Long v County of Erie, 60 NY2d 296, 307 [1983]). Likewise, preclusion of evidence as cumulative is a matter left to the sound discretion of the trial court (Rucigay v Wyckoff Heights Medical Center, 194 AD3d 865, 867 [2d Dept 2021]).

In exercising its discretion here, the Court recognizes that "[a] plaintiff's burden in making a showing of causation and negligence is lighter under FELA than it would be at common law" (Tufariello v Long Is. R.R. Co., 458 F3d at 87). Indeed, "[u]nder FELA, a jury is entitled to find negligence if a party's actions 'played any part, even the slightest, in producing the injury' " (Hotaling v CSX Transp., 5 AD3d 964, 967-968 [3d Dept 2004], quoting Rogers v Missouri Pacific R. Co., 352 U.S. 500, 506 [1957]). Concomitantly, " 'an employer may be held liable under FELA for risks that would otherwise be too remote to support liability at common law' " (id., quoting Ulfik v Metro—North Commuter R.R., 77 F.3d 54, 58 [2d Cir.1996]).

Plaintiff's Motion (No. 3)

Testimony by defendant's expert Weames should be limited to his report's rationale and conclusion regarding the foreseeable risk of injury based on his kinesiological and ergonomic analyses.

Defendant's expert Weames' testimony should be precluded in part to the extent that it is cumulative of defendant's two other experts. But there is no basis to preclude Weames' opinion regarding the foreseeable risk of injury based on kinesiological and ergonomic analyses.

Defendant has disclosed two other expert witnesses. The first is John J. Cambareri, an orthopedist, who opines in his independent medical examination (IME) report that, from a medical standpoint, plaintiff's injuries are "all consistent with a Charcot joint or neuropathic arthropathy," which is a "well-known orthopedic condition that occurs often in diabetics," such as plaintiff. If plaintiff's "fracture [was] to occur from trauma," Cambareri continues, "it would take significantly more trauma than [plaintiff] described." Cambareri notes that plaintiff "has some significant comorbidities" and concludes that plaintiff's "alleged injuries were not cause or contributed to by his railroad work." Defendant also proffers opinion evidence from Frank Fortino, "an expert in the area of building construction, maintenance, and safety codes and standards." Fortino is the owner of Metropolis Consulting Group, Inc., with over 30 years' experience in the construction field. Defendant anticipates that Fortino's testimony "will encompass all aspects of applicable standards and codes and will rebut any opinions that may be offered by any of [p]laintiff's expert witnesses that specific standards and codes apply to specific areas/or were not adhered to by [defendant]."

Weames, on the other hand, is a certified ergonomist and holds a Master's degree in kinanthropology and a Bachelor's degree in kinesiology. His curriculum vitae touts numerous memberships in professional associations, conference papers, and presentations in the field of ergonomics. He authored a 31-page report analyzing plaintiff's accident, drawing on the pleadings, deposition testimony, other materials in the case file, and data collected during his January 2022 site visit. The report contains Weames' analysis of those sources and data using methods sanctioned by the National Institute for Occupational Safety and Health, ultimately concluding "to a reasonable degree of scientific certainty [that] the act of stepping down from the shop floor to the drop pit floor . . . was/is reasonably safe from an acute fracture of the ankle." In some respects, Weames' report and testimony would substantially overlap with that of Cambareri and Fortino. For example, Weames reports on the prevalence of risk factors in people who suffer ankle fractures—for example, age, obesity, vitamin D deficiency, and diabetes. He also comments on the apparent strangeness of "conduct[ing] normal weight-bearing activities on an acute isolated medial malleolar fracture," the common causes of injuries such as plaintiff's, and the consequences of leaving an ankle fracture untreated. Some of these matters are clearly covered by Cambareri's IME. To the extent they are not, they smack of medical opinions beyond the scope of Weames' credentials and experience as an ergonomist.

In addition, defendant seeks to preclude as cumulative any testimony from Weames regarding "workplace standards, rules and regulations." Weames, by way of affidavit, denies plaintiff's assertion that his testimony on such matters would substantially overlap with Fortino's:

"My report does not contain, nor will my testimony include[,] any detail, measurements or opinions regarding building codes, regulations or standards. In fact, my report unequivocally states that 'the specific and relevant interpretation and application of such building codes are deferred to others in this matter.' "

Notwithstanding this disclaimer, Weames' report does note his understanding that none of the regulations and codes upon which plaintiff relies apply to defendant, which is a central point of Fortino's proffered opinion. And it conflicts with what defendant told plaintiff in its CPLR 3101 (d) disclosure. Any such testimony from Weames regarding "workplace standards, rules and regulations" should be precluded as cumulative.

But Weames' opinion as to the risk of an ankle injury relative to the condition of Drop Pit 2, the ledge, and surrounding platform based on his kinesiological and ergodynamic analyses using the force and acceleration studies he employed is not cumulative. And such opinion testimony bears on foreseeability (see Gallick, 372 US at 117). To that extent, it stands apart from the opinions offered by defendant's other experts, which speak to causation (Cambareri) and the standard of care (Fortino).[FN2]

Consequently, exercising its discretion to qualify experts and preclude evidence as cumulative (see SpecFin Mgt. LLC v Elhadidy, 201 AD3d 31, 37 [3d Dept 2021]; Cor Can. Rd. [*4]Co., LLC v Dunn & Sgromo Engrs., PLLC, 34 AD3d 1364, 1365 [4th Dept 2006]), the Court will limit Weames' testimony to his kinesiological and ergodynamic analyses and ultimate conclusion based on such analyses.

Finally, the Court rejects plaintiff's claim of entitlement to a Frye hearing. A Frye hearing is only appropriate to ascertain the reliability of novel scientific evidence, specifically, to determine " 'whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally' " (Parker v Mobil Oil Corp., 7 NY3d 434, 446 [2006], quoting People v Wesley, 83 NY2d 417, 422 [1994]; see People v Powell, 37 NY3d 476, 489-490 [2021]; Page v Marusich, 51 AD3d 1201, 1202-1203 [3d Dept 2008]). "[A] Frye hearing is generally unwarranted '[a]bsent a novel or experimental scientific theory' " (People v Williams, 35 NY3d 24, 43 [2020], quoting People v Brooks, 31 NY3d 939, 941 [2018]).

As discussed above, Weames' conclusion relies on a method promoted by a national organization and draws on an extensive body of literature. Plaintiff insists that he raises legitimate questions about the basis for Weames' opinion with respect to causation and the methodology he employs. Yet, "Frye is not concerned with the reliability of a certain expert's conclusions, but instead with whether the [expert's] deductions are based on principles that are sufficiently established to have gained general acceptance as reliable" (Nonnon v City of New York, 32 AD3d 91, 103 [1st Dept 2006], affd 9 NY3d 825 [2007] [internal quotation marks and citation omitted]; see People v Williams, 35 NY3d at 43; Matter of State of New York v Marcello A., 180 AD3d 786, 790 [2d Dept 2020]). As plaintiff does not allege that the methods Weames' employed are not generally accepted in the field of ergonomics, his request for a Frye hearing is denied.

In light of the foregoing, plaintiff's motion is granted, in part, and Weames' testimony will be limited as described above; and plaintiff's motion is denied in all other respects.

Defendant's Motion (No. 4)

Plaintiff's expert Marletta's opinion testimony is not precluded by preemption concerns, although appropriate limiting instructions must be given.

Marletta holds a Ph.D. in occupational safety and health from New York University and, since 1985, has been principal of William Marletta Safety Consultants, Inc. His 52-page, coauthored report on plaintiff's accident relies on documents, photographs, witness statements and deposition testimony, along with measurements taken during his firm's January 26, 2022 site visit. Drawing on these inputs, Marletta arrives at 10 conclusions:

"1. It is our professional opinion with a reasonable degree of certainty as certified safety professionals that the curb/riser [i.e., the ledge] was not protected with removable railings that prohibited employees from using it as a means of ingress/egress. Although [drop pit No. 2] is approximately [14¾ inches] deep, removable railings/guardrails would have prevented employees from using an excessively high riser to enter/exit the pit."2. It is our professional opinion with a reasonable degree of certainty as certified safety professionals that the riser height involved with [plaintiff's] accident is excessive and dangerous to users, departing from OSHA Standards, The New York State Building Code, and good and accepted safe practice."3. It is our professional opinion with a reasonable degree of certainty as certified safety professionals that the top and bottom landings of the riser where [plaintiff's] accident occurred are not level and true, making them extremely dangerous for pedestrian use."4. It is our professional opinion with a reasonable degree of certainty as certified safety professionals that [defendant] failed to adequately supervise work in the drop pit area. Supervisors witnessed [plaintiff] ascending and descending the excessive riser/curb, but failed to warn him of the dangers present or stop him from continuing the dangerous action. Failure to adequately supervise led to hazardous workplace behaviors."5. It is our professional opinion with a reasonable degree of certainty as certified safety professionals that the top landing and bottom landing of the single step riser can be described as having a smooth, hard surface."6. It is our professional opinion with a reasonable degree of certainty as certified safety professionals that diesel fuel or other oil was present, coating the concrete floor. The platform with yellow painted lines is observed with an oily substance covered throughout, slippery to the touch. Without abrasive covering added to the paint, this would make the substance treacherous, or worse, particularly with the presence of water or high humidity."7. It is our professional opinion with a reasonable degree of certainty as certified safety professionals that if [plaintiff] were to have used the provided staircases to enter and exit [Drop Pit 2] on the east and west end as opposed to the excessive riser, the staircases would NOT have been safe for use. The provided 'staircases' have non-uniform risers, excessive tread lengths, no handrails on either side, and they are both short flight stairs."8. It is our professional opinion with a reasonable degree of certainty as certified safety professionals that at a minimum, although not sufficient to remedy the hazard, adequate warning signs, cones, barricades, or conspicuous markings in contrast should have been posted until proper remedial measures could be effected."9. It is our professional opinion with a reasonable degree of certainty as certified safety professionals that [plaintiff] attempted to report his accident to a supervisor after his slip from the excessive riser occurred; however, the supervisor encouraged the accident to go unreported in order for the plant to maintain an 'accident free' work environment."10. It is our professional opinion with a reasonable degree of certainty as certified safety professionals that these departures from codes, rules, regulations and good and accepted safe practice were the proximate cause(s) of this accident."

In its first argument, defendant seeks to preclude portions of Marletta's report and testimony supporting conclusion Nos. 1, 2, 3, 5, 7, and 8, arguing that such opinions are irrelevant—and therefore inadmissible—because they rely on OSHA regulations, state building codes, or professional association guidelines preempted by other regulations and controlling policy statements promulgated by the FRA under authority granted by the Federal Railroad Safety Act (see 49 USC § 20101 et seq.). Next, defendant argues that Marletta's testimony must be precluded because the jury may be misled into believing that violations of OSHA regulations, state building codes, or professional association guidelines establish defendant's liability, resulting in undue prejudice (see Mazella v Beals, 27 NY3d 694, 709 [2016]). Further, defendant continues, Marletta's opinions must be precluded because they do not rely on recognized methodologies or authorities; they are not supported by sufficient facts or data; and they are not [*5]beyond the ken of the average juror.[FN3]

Preemption Issues

As an initial matter, violations of OSHA regulations, state building codes, and professional association guidelines do not, by themselves, establish liability under FELA. A finding of negligence per se is only available in a FELA action " 'when there has been a violation of a safety statute specifically aimed at the railroad industry' " (Morant v Long Is. R.R., 66 F3d 518, 522-523 [2d Cir 1995], quoting Ries v National R.R. Passenger Corp., 960 F2d 1156, 1159 [3d Cir 1992]; see Bittinger v CSX Transp. Inc., 176 Md App 262, 281, 932 A2d 1243, 1254 [Ct Special App 2007], cert denied 402 Md 356, 936 A2d 852 [2007]). And "[w]hat constitutes negligence for [FELA's] purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes" (Urie v Thompson, 337 US 163, 174 [1949]; accord Zimmerman v Long Is. R.R., 2 Fed Appx 172, 174 [2d Cir 2001]). To that end, the safety statutes that establish negligence per se under FELA include the Locomotive Inspection Act (USC § 20701 et seq. [formerly the Boiler Inspection Act]), the Safety Appliance Act (49 USC § 20301 et seq.),[FN4] and other federal rail safety standards enshrined in statute or regulation (e.g. 49 U.S.C. §§ 20101, 20142; 49 CFR ch II; see Deso v CSX Transp., Inc., 790 F Supp 2d 1, 8 [ND NY 2011].; Weber v BNSF Ry. Co., 2011 MT 223, ¶ 22, 362 Mont 53, 59, 261 P3d 984, 990 [2011]; Bittinger, 176 Md App at 282, 932 A2d at 1255). Consequently, proof of a railroad's noncompliance with OSHA regulations, state building codes, and professional association guidelines would not amount to negligence per se and would not discharge a FELA plaintiff's burden to prove the railroad's negligence.

To succeed on his FELA claim, plaintiff must still prove that defendant "did not act as a reasonable person would have under the circumstances" (Miller v Chicago & N.W. Transp. Co., 925 F Supp 583, 588 [ND Ill 1996]), which he intends to do through Marletta's testimony. Defendant maintains that the OSHA regulations, state building codes, and professional association guidelines upon which Marletta's report and proffered testimony relies are all displaced or preempted. As such, defendant says, Marletta's use of those authorities to opine on the standard of care renders much of his report and testimony inadmissible.

But as discussed below, Marletta is not precluded on preemption grounds from testifying based on OSHA regulations, state building codes, and professional association guidelines to the extent they may be relevant as the facts unfold at trial. Any unfair prejudice to defendant or jury confusion can be ameliorated by appropriate jury instructions (see Robertson v Burlington N.R.R. Co., 32 F3d 408, 410-411 [9th Cir 1994]; cf. Velasquez v Southern Pac. Transp. Co., 734 F2d 216, 218 [5th Cir 1984]; Miller, 925 F Supp at 588 & nn 6, 7; Bittinger, 176 Md App at 282, 932 A2d at 1255).

First up is defendant's argument that opinions based on OSHA regulations are precluded by the so-called negative preemption provision in the Occupational Safety and Health Act of 1970 (29 USC § 651 et seq. [hereinafter the OSH Act]): "Nothing in this chapter shall apply to working conditions of employees with respect to which other [f]ederal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health" (29 USC § 653 [b] [1]). In this respect, FRA announced in a 1978 policy statement that "OSHA regulations concerning working surfaces [such as] ladders, stairways, platforms, scaffolds and floor openings . . . are applicable in railroad offices, shops, and other fixed work places," subject to "three principal exceptions" (49 Fed Reg 10583, 10587 [1978]). The first exception concerns working surfaces as part of "the design of locomotives and other rolling equipment used on a railroad" (id.), which is not relevant here.

The second exception concerns locomotive inspection and repair facilities:

"OSHA regulations on guarding of open pits, ditches, etc., would not apply to inspection pits in locomotive or car repair facilities. FRA is better equipped to assess proper clearance technology and employee knowledge of existing industry practices as well as the prevalence and severity of hazards represented by specific injury occurrence codes in accident/incident reporting statistics. FRA is responsible for determining what additional regulatory steps, if any, may be necessary in this area in light of overall safety considerations." (Id. [emphasis added].)

And the third exception is directed at ladders, platforms, and other surfaces and to walkways along tracks and rights-of-way:

"OSHA regulations would not apply to ladders, platforms, and other surfaces on signal masts, cantenary [sic] systems, railroad bridges, turntables, and similar structures or to walkways beside the tracks in yards or along the right-of-way. These are areas which are so much a part of the operating environment that they must be regulated by the agency with primary responsibility for railroad safety. Therefore, FRA will determine the need for and feasibility of general standards to address individual hazards related to such surfaces, keeping in mind the requirement of proper clearances and the familiarity of employees with existing industry designs." (Id. [emphasis added].)

Defendant builds its argument on cases holding OSHA regulations inapplicable in actions to recover for injuries sustained on walkways in railroad yards or repair facilities—i.e., the third exception (see Velasquez, 734 F2d at 218; Ledbetter v Missouri Pac. R.R. Co., 12 SW3d 139, 144 [Tex Ct App 1999]). Here, however, plaintiff testified that he fractured his ankle when he stepped off the ledge and onto the floor of Drop Pit 2. Plaintiff acknowledges that his accident occurred within an "inspection pit[ ] in [a] locomotive or car repair facility," which is subject to the second exception to OSHA regulations (49 Fed Reg at 10587). Therefore, OSHA regulations give way to FRA's authority by operation of the OSH Act's negative preemption clause (see 29 USC § 653 [b] [1]), and "[p]laintiff may not introduce evidence of OSHA regulations or standards to show that (1) [defendant was] bound by OSHA under the circumstances of this case, or (2) [defendant] violated those OSHA regulations or standards" (Campbell v Consolidated Rail Corp., 2009 WL 36889,*4, 2009 US Dist LEXIS 803, *13 [ND NY, Jan. 6, 2009, No. 1:05-CV-1501 (GTS/GJD)]; see Velasquez, 734 F2d at 219; Miller, 925 F Supp at 588).

"That does not, however, end the discussion" (Miller, 925 F Supp at 587). Plaintiff's burden in this FELA action is to prove that defendant "did not act as a reasonable person would [*6]have under the circumstances" (id. at 588), which he intends to do through Marletta.[FN5] The weight of authority holds that, even when displaced by the FRA policy statement, OSHA regulations are admissible as some evidence of negligence (see e.g. Robertson, 32 F3d at 410; Falconer v Penn Mar., Inc., 397 F Supp 2d 68, 72 [D Me 2005]; Miller, 925 F Supp at 588; Manes v Metro-North Commuter R.R., 801 F Supp 954, 965 [D Conn 1992], affd sub nom. Manes v Metro-North Com Rail, 990 F2d 622 [2d Cir 1993]; see also Jones v Spentonbush-Red Star Co., 155 F3d 587, 596 [2d Cir 1998] [arriving at the same conclusion with respect to claims under the Jones Act (42 USC § 30104), FELA's maritime analogue]).[FN6] The Court agrees and finds that the OSHA standards may be relevant and admissible to that extent but should be supplemented by an appropriate jury instruction, as discussed above (see Robertson, 32 F3d at 410-411; Campbell, 2009 WL 36889,*4-5, 2009 US Dist LEXIS 803, *12-14).

Defendant also challenges Marletta's reliance on state building codes, which are cited in support of conclusion Nos. 1, 2, 3, and 7. Broadly speaking, Marletta opines that the ledge, shop platform, and the floor and stairs of Drop Pit 2 are unsafe are based in part on state building codes addressing stairway guardrails, stair treads and risers (see 2010 Bldg Code of NY St §§ 1009.3, 1009.5.1; 1984 Bldg Code of NY St §§ 764.1b, 765.4a-9, 765.4a-10, 765.4a-11, 765.4a-13, 765.4c-4; table IV-765; 1978 St Bldg Constr Code § C 212-4 [i], [j]; 1956 St Bldg Constr Code § C 212-4.1 [c], [h], [i], [k], [l]; table C 212-4.1; 1951 St Bldg Constr Code § A 205-3 [reprinted in Code Manual for the State Building Construction Code, part 2 at 5 (1951)]; see generally Executive Law § 373).

Defendant maintains that state building codes are preempted by regulations adopted under the Federal Railroad Safety Act. Pursuant to the Supremacy Clause, state law may be preempted by federal statutes either through express statutory language or by implication (see US Const, art VI, cl 2; Island Park, LLC v CSX Transp., 559 F3d 96, 101 [2d Cir 2009]). Implied preemption is found where state and federal law conflict such that compliance with one would violate the other, or where the federal regulatory regime is so comprehensive or the federal interest in the regulated field is so dominant "that that the federal system will be assumed to preclude enforcement of state laws on the same subject" (Sutton 58 Assoc. LLC v Pilevsky, 36 NY3d 297, 305-306 [2020] [internal quotation marks and citations omitted], cert dismissed — US —, 142 S Ct 53 [2021]).

Here, the Federal Railroad Safety Act contains an express preemption provision but [*7]allows a state to "adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters) . . . prescribes a regulation or issues an order covering the subject matter of the [s]tate requirement" (49 USC § 20106 [a] [2]). Even where such a regulation or order exists, 49 USC § 20106 (a) (2) allows a state to adopt or enforce its own more stringent law if doing so "(A) is necessary to eliminate or reduce an essentially local safety or security hazard; (B) is not incompatible with a law, regulation, or order of the United States Government; and (C) does not unreasonably burden interstate commerce" (id.). Congress amended 49 USC § 20106 in 2007 to clarify that "[n]othing in [that] section shall be construed to preempt an action under [s]tate law seeking damages for personal injury, death, or property damage alleging that a party . . . (A) has failed to comply with the Federal standard of care established by a regulation or order issued by the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), covering the subject matter as provided in [49 USC § 20106 (a)]; (B) has failed to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the Secretaries; or (C) has failed to comply with a [s]tate law, regulation, or order that is not incompatible with [49 USC § 20106] (a) (2)" (id. § 20106 [b] [1]).

So, to demonstrate preemption, defendant must identify a relevant "federal standard of care or an internal rule that was created pursuant to a federal regulation" or that some "federal regulation covers the plaintiff's claim" (Zimmerman v Norfolk S. Corp., 706 F3d 170, 178 [3d Cir 2013], cert denied 571 US 826 [2013]; see Rhinehart v CSX Transp., Inc., 2017 WL 3500018, *6, 2017 US Dist LEXIS 131117, *14-15 [WD NY, Aug. 16, 2017, No. 10-CV-86 (LJV) (LGF)]). "[R]egulations issued by the Secretary of Transportation that merely 'touch upon' or 'relate to' the same subject matter as a state safety law are insufficient to establish pre[ ]emption because ' "covering" is a more restrictive term which indicates that pre[ ]emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law' " (Island Park, LLC, 559 F3d at 107, quoting CSX Transp., Inc. v Easterwood, 507 US 658, 664, [1993]; see Henderson v National R.R. Passenger Corp., 87 F Supp 3d 610, 613 [SD NY 2015]).

In support of its preemption claim, defendant points to three regulations—49 CFR 213.109 (f); 238.313 (j) (2); and 299.319 (j)—that purportedly "contain detailed requirements for track structures and servicing pits" and therefore subsume the building codes cited by Marletta. None of those regulations create a federal standard of care with respect to the drop pit and surrounding platform at issue here (compare Diehl v CSX Transp., Inc., 349 F Supp 3d 487, 503 [WD Pa 2018]), nor do they substantially subsume the subjects of the codes upon which Marletta's opinions rely (see Murphy v Town of Darien, 332 Conn 244, 255-256, 210 A3d 56, 65 [2019], cert denied — US —, 140 S Ct 847 [2020]). First, 49 CFR 213.109 is titled "Crossties," and paragraph (f) directs the reader to minimum requirements for, among other places, the "track over servicing pits." Next, 49 CFR 238.313, "Class I brake test," sets out "requirements pertaining to the inspection, testing, and maintenance of passenger equipment operating at speeds not exceeding 125 miles per hour" (49 CFR 238.301 [a]; see id. § 238.313 [a]). The identified paragraph mandates an additional inspection of brakes in certain circumstances, which must be "conducted while the equipment is over an inspection pit or on a raised inspection track" (id. § 238.313 [j] [2]). Finally, 49 CFR 299.319 (j) relates to "track constructed without crossties, such as . . . track over servicing pits." However, 49 CFR part 299 "prescribes minimum [f]ederal [*8]safety standards for the high-speed transportation system . . . known as Texas Central Railroad, LLC" (id. § 299.1)—i.e., not defendant.

Thus, defendant has not shown that federal regulations cover or subsume the subject matter of the state codes that Marletta invokes. The Court therefore denies this branch of defendant's motion without prejudice to its ability to seek preclusion of specific state code provisions on different grounds.

Finally, the professional association guidelines cited by Marletta are not "preempted" by—presumably meaning incompatible with—federal regulations under the Federal Railroad Safety Act. In reaching conclusions about the safety of the walking surfaces, stairs, and ledge, Marletta's report relies upon guidance from the American National Standards Institute (ANSI), American Society of Testing and Materials (ASTM), and the National Fire Protection Association. Defendant has not identified any federal statute or federal workplace safety regulation that conflicts with the professional association guidelines cited by Marletta, nor has it demonstrated that the controlling regulatory regime restrained it from, for example, constructing removable barriers around Drop Pit 2 or installing handrails along its pit stairs. Therefore, as with the state codes, the Court denies so much of defendant's motion as sought to preclude Marletta from opining on the standard of care based on the cited professional association guidelines without prejudice to a future challenge on a different ground (cf. Alvarez v First Natl. Supermarkets, Inc., 11 AD3d 572, 573 [2d Dept 2004]).

Marletta's opinions are supported by an adequate foundation.

Claiming inadequate support by "scientific literature or authority," defendant seeks to preclude Marletta's opinions that plaintiff's injury could have been prevented or mitigated had guardrails around the ledge existed and the walking surfaces at the top and bottom of the ledge been level. This attack is unavailing. Marletta's use of the case record along with his own measurements and observations from the site visit supply an adequate factual basis for these opinions (see Hambsch v New York City Tr. Auth., 63 NY2d 723, 725 [1984]; Adair v Tully-Kuzman, 91 AD3d 1228, 1229 [3d Dept 2012]). Further, Marletta's advanced education in occupational safety and health, decades-long consulting experience in that field, and numerous professional honors as described in his curriculum vitae are "adequate to support an assumption that the opinion he [proffers is] reliable" (Price v New York City Hous. Auth., 92 NY2d 553, 559 [1998]; see Pember v Carlson, 45 AD3d 1092, 1094 [3d Dept 2007]). Contrary to defendant's view, the fact that Marletta did not conduct the same analysis as Weames speaks only to the weight to be accorded Marletta's opinion by the jury (see Jackson v Nutmeg Tech., Inc., 43 AD3d 599, 602 [3d Dept 2007]), which defendant may explore on cross-examination (see CPLR 4515).

Conclusion No. 6

The Court denies without prejudice so much of defendant's motion as sought to preclude Marletta from testifying as to conclusion No. 6 for want of an adequate factual basis. This conclusion is predicated upon Marletta's observation "that diesel fuel or other oil was present, coating the concrete floor," creating a slippery walking surface especially when combined with moisture or humidity. But also contained in Marletta's report is an analysis of three samples of the "slippery" substance coating the floor, which revealed "that oil was not a main component." Even so, this admission does not wholly undermine Marletta's opinion, which was apparently based in part on defendant's testimony that the "condensation" was a "wet/oily surface." Although an expert opinion may be based on testimony (see e.g. Hudson v Lansingburgh Cent. School Dist., 27 AD3d 1027, 1029 [3d Dept 2006]), neither party submitted the page of [*9]defendant's deposition transcript backing up this claim. Consequently, this aspect of defendant's motion is denied for now, but may be revisited at trial (see People v Cummings, 31 NY3d 204, 209 [2018]).

Conclusion No. 5

Defendant argues that Marletta should not be permitted to testify as an expert regarding the contribution to plaintiff's injury from the "smooth hard, surface" along the top of the ledge and in the pit. Marletta's report explains, essentially, that such a surface will become slippery when wet and that defendant's failure to mitigate that slipperiness with "abrasives (or other measures to increase surface roughness)" was a "main cause and factor in [defendant's] accident and injury." The Court acknowledges that Marletta provides no regulation or industry standard to substantiate his assertion that this condition was unsafe. But given his background as a safety consultant, the Court will not preclude his opinion testimony that defendant "should have . . . taken [such] measures to increase the surface roughness of the floor" (see Alger v CVS Mack Drug of NY, LLC, 39 AD3d 928, 929 [3d Dept 2007]).

Conclusion No. 9

Defendant argues that Marletta's conclusion No. 9, which asserts as a basis for his opinion that plaintiff's foreman "encouraged the accident to go unreported," should be precluded. According to plaintiff's expert disclosure, Marletta will testify that the foreman's alleged discouraging statements to plaintiff and delay in filing an accident report violated 49 CFR part 225 reporting requirements (see 49 CFR 225.1, 225.3, 225.11, 225.13; see also 49 USC § 20109 [c] [1]).[FN7] Departure from these requirements may be relevant to allegations that defendant's post mis-step negligence exacerbated plaintiff's injuries. And such testimony calls for "professional or technical knowledge [of reporting requirements] . . . beyond the ken of the typical juror" (De Long, 60 NY2d at 307; see Robins v City of Long Beach, 192 AD3d 709, 710 [2d Dept 2021]).

Accordingly, it is

Ordered that the plaintiff's motion (No. 3) is granted in part and denied in part, as described above; and it is

Ordered that the defendant's motion (No. 4) is granted in part and denied in part to the extent described above.

This constitutes the Decision and Order of the Court, the original of which is being uploaded to NYSCEF for electronic entry by the Albany County Clerk. Upon such entry, counsel for defendant shall promptly serve notice of entry on all other parties entitled to such notice.

Dated: February 6, 2023
Albany, New York
Hon. Denise A. Hartman
Acting Justice of the Supreme Court
Papers Considered

NYSCEF Doc Nos. 1, 9, 14, 32-38, 41-44, 46-54, 61-64, 66 Footnotes

Footnote 1:Weames' report has the height of the ledge at 14½ inches. The discrepancy is irrelevant to the issues in these motions, and the Court's use of 14¾ inches does not indicate its acceptance of this measurement.

Footnote 2:In his affidavit, Weames asserts that his report "derives a causation theory based on the physical forces experienced by humans at the ankle joint, including peak acceleration measurements made on-site at the location of the claimed incident." Weames is not a medical expert, however, and therefore cannot opine as to whether defendant's accident actually caused his injury.

Footnote 3:The Court declines defendant's invitation to strike plaintiff's opposition to its motion for being "riddled with case law citations and legal argument" in contravention of 22 NYCRR part 208. Notably, defendant's opposition to plaintiff's motion suffers the same impropriety.

Footnote 4:Plaintiff originally claimed violations of the Locomotive Inspection Act and the Safety Appliance Act, but, before defendant joined issue, references to those statutes were struck from the complaint upon the parties' stipulation.

Footnote 5:Ledbetter v Missouri Pac. R.R. Co. (12 SW3d 139) does not say otherwise. That a trial court in a different state faced with a unique constellation of evidence did not abuse its discretion in excluding OSHA regulations based on a preemption theory does not require this Court to follow suit (see id. at 144-145).

Footnote 6:Defendant's reliance on Velasquez v Southern Pac. Transp. Co. (734 F2d 216) is misplaced. There, the trial court instructed the jury that the OSHA regulations received into evidence "do apply to the railroad industry in this case," even though violation those regulations was merely evidence of negligence (id. at 218). The Fifth Circuit reversed and remanded for new trial because the "jury instruction incorrectly held the railroad to a specific government agency standard of care," never "reach[ing] the issue of whether the introduction of OSHA regulations into evidence was reversible error" (id. at 219 & n 2).

Footnote 7:Defendant did not plead in his complaint or bill of particulars that the foreman's alleged actions violated safety statutes, amounting to negligence per se. As such, the Court's decision is limited to whether Marletta's testimony in this respect must be precluded as an inappropriate subject of expert opinion.